Disability Discrimination Act 1992 (Cth) Review Submission

Disability Discrimination Act 1992 (Cth) Review
Submission
October 2025

Disability Discrimination Act Review 1

Contents

Introduction –––––––––––––––––––––––––––––––––––––––––––––– 3

• Summary position of the Office of the Public Guardian

• Office of the Public Guardian

• Adults with impaired capacity

• Community Visitor and Advocacy Program (adult)

• Community Visitor and Advocacy Program (child) and child advocacy

Discussion Paper Response ———————————————————————— 8

• Definition of disability

• Modernisation

• Broad definition

• Positive duty

• Inclusion

• Reasonable adjustments

• Exclusionary school discipline

Conclusion –––––––––––––––––––––––––––––––––––––––––––––– 12

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Introduction

1. The Office of the Public Guardian (OPG) welcomes the opportunity to make a submission to the Disability Discrimination Act 1992 (Cth) Review (DDA).

2. OPG acknowledges the Australian Government’s commitment to progress the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (Disability Royal Commission) recommendations to strengthen protections for persons with a disability and to simplify and modernise the DDA, so it is ‘user friendly’ to persons with a disability and duty holders.

3. OPG recognises the importance of the DDA in protecting the rights of people with disability but notes that legislative reform alone will not address the practical issues they face. The Disability Royal Commission highlighted that people with disability are frequently subjected to discriminatory attitudes, assumptions about their capacity, and a lack of recognition of their autonomy.

4. OPG’s submission addresses issues that fall within our direct experience and align with our statutory role and functions. It does not seek to respond to all consultation questions but focuses on matters where OPG can provide meaningful insights and expertise.

Summary position of the Office of the Public Guardian

General

• The DDA currently operates as a reactive, complaints-based mechanism, placing the burden of enforcement on individuals who may lack capacity, resources or support to pursue remedies. Strengthening the DDA’s enforcement framework to better protect people with impaired decision-making capacity could include introducing compliance monitoring, enforceable standards and own-motion inquiries.

Definition of Disability

• Support is provided for modernising the definition of disability to replace stigmatising terminology (‘malfunction’, ‘malformation’, ‘disfigurement’, ‘disturbed’) with neutral, descriptive language that reflects contemporary human rights standards and incorporates principles from the WHO’s International Classification of Functioning, Disability and Health.
• Support is provided for emphasising the importance of preserving the breadth and diagnosis-neutral character of the current definition, maintaining the low eligibility threshold and explicit temporal scope covering past, present, future and imputed disabilities. This is critical for people with impaired capacity whose decision-making ability may fluctuate.

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Positive Duty

• Support is provided for the introduction of a positive duty requiring service and accommodation providers to eliminate discrimination against people with disability.
• It is noted that adjustments for people with impaired decision-making capacity often require nuanced, individualised responses. Implementation will require adequate government funding, clear guidance and practical resources, particularly for rural and remote service providers facing existing workforce and infrastructure constraints.

Reasonable Adjustments

• Support is provided for amending sections 5(2) and 6(2) of the DDA to clarify that the duty to make reasonable adjustments requires positive actions to accommodate the needs of people with disability, consistent with approaches in comparable jurisdictions including the United Kingdom and Canada.
• It is noted that compliance mechanisms are needed to monitor and enforce the duty to make reasonable adjustments.

Exclusionary Discipline

• It is recognised that children in out-of-home care with disability are particularly vulnerable to exclusion from education. Support is provided for the DDA expressly recognising exclusion and exclusionary discipline as forms of discrimination unless reasonable adjustments and alternative supports have been explored, consultation has taken place with the child’s support network, and the decision-maker can demonstrate proportionality.
• It is noted that children with disability in out-of-home care experience disproportionately high suspension and exclusion rates, compounding existing instability and increasing likelihood of contact with youth justice systems.

Office of the Public Guardian

5. The public guardian is a statutory office holder appointed under section 94 of the Public Guardian Act 2014 (Qld)(PGA).i The public guardian performs functions and exercises powers under the PGA, Guardianship and Administration Act 2000 (Qld) (GAA), Power of Attorney Act 1998 (PAA).

6. The public guardian’s mandate is to promote and protect the rights and interests of:

• adults with impaired capacity for a matter, and
• adults with a cognitive, intellectual, neurological or psychiatric impairment staying at visitable sites,ii
• relevant children and children staying at visitable sites.iii

7. OPG fulfils its mandate through guardianship and investigations services for adults with impaired decision-making capacity. It also oversees the administration of Queensland’s Community Visitor and Advocacy Program.

i The public guardian is supported by the Office of the Public Guardian (OPG), OPG staff exercise delegated functions of the public guardian. ii PGA, s39, impairment iii PGA, ss51 (visitable site), 52 (relevant child)

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Adults with impaired capacity

8. The public guardian may be appointed by the Queensland Civil and Administrative Tribunal (QCAT) to provide substitute decision making services for an adult with impaired capacity for personal and/or health matters. In the 2023-24 financial year, the public guardian acted as decision maker of last resort for 3,881 adults, 3009 of whom were registered National Disability Insurance Scheme (NDIS) participantsiv

9. In 2023-24, the public guardian was appointed to make decisions for service provision (83% of orders), accommodation (56%), health care (20%), restrictive practices (12%), legal matters (9%) and contact arrangements (6%).v It is important to note, that while the public guardian can make decisions to assist with legal matters such as engaging and instructing a lawyer, supporting court participation, and advocating for rights, it cannot act as a person’s direct legal representative, or make financial or property-related decisions.

10. In the same period, the public guardian made 92 submissions to QCAT seeking to revoke guardianship appointments where it was determined that a substitute decision maker was no longer required. All applications considered by QCAT resulted in the revocation of the public guardian’s appointment, reflecting the commitment to upholding the autonomy of individuals and ensuring that guardianship is only in place when absolutely necessary.vi

11. The public guardian may investigate allegations that an adult with impaired decision-making ability is being or has been neglected, exploited, or abused, or has inappropriate or inadequate decision-making arrangements.

Community Visitor and Advocacy Program (adult)

12. Community Visiing and Advocacy (adults) is a statutory safeguard designed to independently monitor and protect the rights and interests of adults residing in or receiving services at visitable sites. This includes adults with impaired decision-making capacity for a personal or financial matter, or any adult with a cognitive, intellectual, neurological or psychiatric impairment living in such settings.

13. Most visitable sites (91% in 2023–24), accommodate NDIS participants including Supported Disability Accommodation and Supported Independent Living. The remainder comprises authorised mental health services, level 3 accredited residential services (boarding houses/hostels) and the Forensic Disability Service. This concentration gives Community Visiing and Advocacy close visibility of disability service environments and how rights are upheld or denied in practice.

14. In 2023-24, community visitors conducted 3,507 visits to adults at visitable sites, raising 2,588 issues on their behalfvii. The majority of issues raised related to core matters of rights and inclusion, with the largest categories being support (24%), least restrictive services (18%), wellbeing (18%) and accommodation (13%).

iv Office of the Public Guardian (n.d) Annual Report 2023-24, OPG website, accessed 25 September 2025 v Ibid vi ibid vii Office of the Public Guardian, Submission to the Elder Abuse Inquiry, OPG website, accessed 22 October 2025

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15. Front-line monitoring identifies patterns that align with disability discrimination risks, including:

• Failure to provide reasonable adjustments such as aids or supports.
• Restriction imposed instead of adjustments made.
• Unauthorised restrictive practices.
• Substituted decision-making without legal authority, including staff informally managing finances.

Case Study: unauthorised restrictive practices and substituted decision-making

A community visitor attended a level 3 accredited residential service site where several concerns were held for a resident with intellectual disability relating to discrimination and a lack of reasonable adjustments.

In Queensland, only government-funded disability support providers are authorised to use restrictive practices under the relevant authorisation framework. The community visitor identified that unauthorised restrictive practices were being used on the resident outside the scope of this scheme, meaning they were applied without the required authorisation, oversight or safeguards.

The resident had no formal or informal decision-making support apart from the staff at the visitable site, raising concerns about their exclusion from decisions affecting their own life. The site manager reported “looking after their money” without formal financial administration arrangements, effectively assuming control of the resident’s finances based on their disability rather than supporting the resident to make their own financial decisions, or through any formal legal appointment.

The site environment raised concerns about adequate care, with poor hygiene and cleanliness observed including strong odours, mould and grime. Following a reported assault involving the resident, no clear safety measures were observed to protect the resident or others at the site, suggesting the provider failed to implement adequate supports responsive to the resident’s needs.

This case demonstrates patterns that align with disability discrimination risks: restrictive practices imposed in place of adjustments, substituted decision-making occurring on the basis of disability, and failure to provide an environment and supports that meet the needs of the resident with disability. These issues arose not from the resident’s disability itself, but from failures to provide appropriate accommodation, decision-making support and reasonable adjustments.

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Community Visitor and Advocacy Program (child) and child advocacy

16. The public guardian has an individual child advocacy function and provides this service through:

• Child advocacy officers provide person-centred advocacy for relevant children and elevates their voice and participation in decisions that affect them. OPG can provide advocacy and support in matters such as anti-discrimination or human rights complaints. However, the public guardian does not act as a litigation guardian or directly instruct a lawyer in such proceedings. These responsibilities are generally exercised by parents or the Chief Executive of Child Safety under the Child Protection Act 1999 (Qld).
• Community visitors monitor and advocate for the rights and interests of children and young people in the child protection system (including foster, kinship and residential care), and all children and young people staying at visitable sites (youth detention centres, police watchhouses, authorised mental health services and other residential facilities).

17. Together, these functions provide a unique statutory mandate to provide an independent voice for children and young people to raise concerns and express their views and wishes.

18. While reporting is likely to understate the prevalence of disability due to inconsistent diagnosis and recording practices within the care systemviii, community visiting reports provide important insights into the experiences of children with disability across placements, education and services. In 2023-24, community visitors conducted 18,741 visits to children and young people at visitable locations, raising 15,122 issues on their behalf ix. Across recent reporting, around one-quarter of children visited were identified as having disability and 480 disability-related issues were raised, the majority of which related to adequate services and supportx.

19. Similarly, the Queensland Government’s 2024 Children in Care Censusxi found that 41% of children in care have a diagnosed or suspected disability; more than half receive NDIS supports; one in five have Fetal Alcohol Spectrum Disorder (FASD) and one in three will require ongoing NDIS support into adulthood. The data also confirmed that children with disability in care experience higher rates of placement breakdowns, exclusion from education and contact with the youth justice system.

20. This data confirms that disability is a significant feature of the care population, and that children with disability face persistent barriers to stability and inclusion.

viii Research Centre for Children and Families, Children and Young People with Disability in Out-of-Home Care: Summary of the Evidence (Report, University of Sydney, 2021) https://www.sydney.edu.au/content/dam/corporate/documents/faculty-of-arts-and-social-sciences/research/research-centres-institutes-groups/rccf/children-and-young-people-with-disability-in-out-of-home-care_summary-of-the-evidence.pdf x Office of the Public Guardian, internal data extract, accessed 1 July 2025 xi Department of Children, Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships, 2024 Children in Care Census: Full Report (Report, Queensland Government, 2024) https://performance.dcssds.qld.gov.au/_media/documents/2024-children-in-care-census-full-report-for-publication.pdf

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Discussion Paper Response

Definition of disability

Modernisation

21. OPG supports the modernisation of the definition of disability. While the current medically anchored definition has provided necessary legal certainty, its language is outdated and misaligned with contemporary human rights standards. OPG recognises that such language can undermine the inherent dignity of individuals with disabilities, as protected under international conventions such as the United Nations Convention on the Rights of Persons with Disabilities and the Human Rights Act 2019 (QLD). By adopting a human rights lens when changing the definition, it is possible to promote equality, respect, and dignity, ensuring the definition aligns with contemporary values and better supports the rights of individuals with disabilities.

22. Modernisation is essential to ensure the definition is not only legally robust but also respectful and inclusive. Key reforms should include replacing stigmatising terminology such as ‘malfunction’, ‘malformation’, ‘disfigurement’ and ‘disturbed’ behaviour with neutral, descriptive language. For example, ‘malfunction’ could be updated to ‘difference in function’ and disfigurement’ to ‘variation’ in physical appearance. Such changes would remove inherently deficit-based concepts while retaining the objective criteria for persons protected from discrimination by the DDA.

23. Consideration should be given to modernising the definition of disability to reflect the World Health Organisation’s International Classification of Functioning, Disability and Health (ICF)xii. For example, framing neurodiversity as a ‘variation in cognitive or neurological functioning’ rather than a ‘disorder or malfunction’ accurately reflects a modern understanding without creating legal ambiguity. The public guardian contends that a revised definition must maintain a clear objective baseline to anchor the legal obligations that follow.

Broad definition

24. OPG emphasises that any reforms must preserve the breadth of the current definition, which is deliberately designed to be diagnosis neutral. This is essential as it allows the definition to capture conditions and disabilities that may emerge or be recognised in the future, without requiring constant legislative amendment. By focusing on the functional impact of a condition, rather than an exhaustive list of specific diagnoses, the definition ensures robust and adaptable protection against novel forms of discrimination that may arise from medical advancements or changing societal understandings.

25. OPG advocates for maintaining the low eligibility threshold in the DDA, which does not require individuals to demonstrate the extent or severity of their disability. The current eligibility threshold maximises legal protections for a wider cohort of people and captures people with impaired capacity. The benefit of the threshold is it removes the need for protracted legal litigation over whether the impairment is a “substantial limitation” such as under the Americans with Disability Act and shifts the focus to the discriminatory acts. This approach ensures that eligibility for protection is based on the presence of discrimination rather than the severity or permanence of a disability.

xii World Health Organisation (2002) International Classification of Functioning, Disability and Health. WHO Website. Accessed 12 September 2025

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26. The definition’s explicit temporal scope, covering past, present, future and imputed disabilities, is of critical importance when considering people with impaired capacity. A person’s capacity to make a decision is not static but can change or fluctuate depending on the complexity of the decision, support available to the person and the time the decision is made.xiii The current definition provides continuous protection for people with impaired capacity, whose ability to engage with services and assert their rights may vary over time and across different contexts. OPG strongly believes that maintaining this temporal breath is fundamental to ensuring the DDA provides a reliable safety net for people with impaired capacity.

Positive duty

27. OPG recognises that people with impaired decision-making capacity continue to face significant barriers in accessing essential services, including healthcare, despite the existence of legislation, policies, and practice guidelines. These barriers include structural challenges, such as physical access to buildings and transport; financial constraints, such as the affordability of services and supports; and attitudinal barriers, including a lack of understanding and responsiveness to the needs of people with impaired capacity.xiv These barriers often result in inequitable access to services and poorer outcomes for individuals with impaired capacity, which directly impacts the public guardian’s statutory role in protecting and promoting the rights and interests of adults with impaired capacity.

28. OPG supports the introduction of a positive duty on service and accommodation providers under the DDA. A positive duty would likely strengthen the ability of community visitors to advocate for residents’ rights by providing a clearer legal framework to reference when raising concerns about discrimination and promoting equitable treatment. This may enhance the capacity of community visitors to identify and raise issues, ensuring that people with impaired capacity receive the adjustments and supports they need to access services on an equal basis.

29. OPG understands that for a positive duty to eliminate disability discrimination to be effective, providers must be supported through adequate support, funding, clear guidance, and practical resources.

Inclusion

Reasonable adjustments

30. Community Visiting and Advocacy, through its visits to Supported Disability Accommodation and other disability sites, has identified recurring failures to provide reasonable adjustments, leaving individuals unable to access the supports needed for daily living. Community visitors frequently raise issues and make complaints about practices that disproportionately disadvantage people with disability. These observations highlight the practical challenges of achieving compliance with the DDA’s reasonable adjustment provisions and underscore the need for stronger legislative obligation.

xiii Queensland Government (n.d) Guidelines for accessing decision-making capacity. QLD Government website. Accessed 25 September 2025 xiv Moloney M, Hennessy T, Doody O (2021). Reasonable adjustments for people with intellectual disability in acute care: a scoping review of the evidence. BMJ Open 2021;11:e039647. doi:10.1136/ bmjopen-2020-039647, accessed 2 October 2025

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Case Study – Failure to provide reasonable adjustments in supported disability accommodation

Community visitors attended a Supported Disability Accommodation site where an adult with multiple disabilities (including intellectual disability, atypical autism, epilepsy, cauda equina syndrome and bipolar affective disorder) reported ongoing delays in receiving essential assistive aids such as grab rails, a suitable shower chair and a customised walking frame. The absence of these supports significantly undermined his independence, safety and dignity, including the ability to manage personal hygiene. Despite repeated requests and documented clinical recommendations, the items had not been provided for months, and no interim solutions were offered.

The resident had expressed a wish to live more independently, including accessing the kitchen and reducing restrictions, yet the lack of basic aids entrenched dependency on staff for tasks he could otherwise manage himself. Compounding this, community visitors were advised that some of his medical appointments were cancelled due to inadequate transport, and the resident was excluded from after-hours GP services, leaving him without required medical care.

Community visitors lodged a formal complaint, identifying that the failure to provide timely and appropriate aids amounted to a denial of reasonable adjustments. This case demonstrates how the absence of adjustments can create cascading barriers to independence, with disability-related needs being managed through restriction and dependency rather than through appropriate support.

31. For children within the public guardian’s statutory remit, impairment often triggers punitive responses rather than support or adjustment. Through oversight of youth detention centres and police watchhouses, community visitors observe how the absence of reasonable adjustments can set in motion a chain of disadvantage for children with disability. When disability-related needs go unrecognised or unsupported in education, care and community settings, behaviours of distress or disengagement are often misinterpreted as defiance or threat. Over time, these unaddressed needs increase the likelihood of school exclusion, placement breakdowns, and contact with the justice system. Consequently, children with disability are over-represented in youth justice settings, underscoring the critical importance of ensuring adjustments are made across various environments to prevent avoidable pathways into the justice system and detention.

32. Strengthening the enforceability of the reasonable adjustment provisions in the DDA is critical to ensure that disability-related needs are addressed lawfully and proportionately, preventing exclusion and punishment from becoming the default response.

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Case Study: criminalisation through unmet disability needs

Angela (pseudonym), a 17-year-old First Nations young person with FASD and multiple co-occurring diagnoses, has been subject to child protection intervention since age 12.

Angela was excluded from two state primary schools and had her high school enrolment application refused in 2024. Despite behaviours linked to her disability, such as emotional dysregulation and aggression, placement decisions in out of home care have prioritised availability over suitability, leading to frequent breakdowns and inadequate support.

Since 2019, Angela has experienced 11 placements, 14 stays in a youth detention centre, and 5 stays in police watchhouses. Her disability-related behaviours are often misinterpreted as misconduct, resulting in punitive responses, including additional assault charges that extend her time in custody.

This case demonstrates how the absence of reasonable adjustments—such as tailored interventions, therapeutic supports, and disability-specific carer training—can escalate into exclusion and criminalisation. Angela’s trajectory highlights the urgent need for enforceable obligations under the DDA to ensure disability-related needs are addressed lawfully and proportionately, preventing punitive responses from becoming the default.

Exclusionary school discipline

33. OPG recognises that children in the child protection system who also have disability are particularly vulnerable to exclusion from education. Child advocacy officers support relevant children to navigate suspension and exclusion processes and to seek adjustments that enable them to remain engaged in schooling. Community visitors have also reported the disproportionate impact of exclusion decisions made under behaviour management frameworks that fail to adequately account for disability-related behaviours.

34. For children in the child protection system with disability, exclusion from education compounds existing instability, undermines placement security, and increases the likelihood of contact with the youth justice system. Data shows that 55% of young people under youth justice supervision are not engaged in education, training, or employment, xv highlighting the long-term trajectory from exclusionary discipline to systemic disadvantage.

35. These patterns demonstrate that exclusionary discipline can function as a mechanism of discrimination when applied without adequate recognition of disability-related behaviours and implementation of appropriate disability support. OPG supports the DDA expressly recognising exclusion and exclusionary discipline as forms of discrimination unless reasonable adjustments and alternative supports have been explored in consultation with the child’s support network. Embedding this safeguard would help ensure that children with disability, particularly those in care, are not further marginalised by disciplinary frameworks that treat support needs as grounds for exclusion.

xv Haddad, C (Manager, Nous Group), Submission to the Youth Justice Reform Select Committee: Youth Justice Reform in Queensland (Submission No 90, 9 January 2023). https://documents.parliament.qld.gov.au/com/YJRSC-6004/YJRSC-54D8/submissions/00000090.pdf

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Case study: education exclusion and disability

Child Advocacy Officers received a referral involving a child in care with an intellectual impairment who had been excluded from their long-term school. The child’s disability affected their ability to comprehend the seriousness and consequences of their actions. Apart from a single prior suspension for possession of a vape, the child had no significant behavioural history during their years at the school.

A child advocate supported the child to lodge an appeal against the exclusion decision, which was unsuccessful. The advocate assisted the child to access specialist legal advice through Legal Aid Queensland’s Employment, Anti-Discrimination and Human Rights team. Legal Aid provided advice and helped prepare a complaint for the Queensland Human Rights Commission (QHRC).

The complaint was lodged by the child’s kinship carer. A conciliation conference was held at the QHRC, attended by the carer on behalf of the child along with departmental representatives and legal counsel. No agreement was reached at conciliation. The child and their carer decided not to pursue the matter further as they did not have the resources to do so.

This case illustrates how children in the child protection system with disability can be excluded from education in ways that are directly connected to the impact of their disability. The conduct that led to the exclusion arose from the child’s impaired ability to comprehend consequences, yet the outcome was a permanent removal from school rather than an adjustment or support. Current legal protections did not provide an effective safeguard against this exclusion.

Conclusion

36. OPG appreciates the opportunity to contribute to the review of the DDA. This submission has focused on areas within the public guardian’s statutory mandate, highlighting the need for reforms to address the barriers faced by people with impaired capacity and children with disability. While the DDA has provided an important framework for protecting the rights of people with disability, the public guardian supports its modernisation to ensure it remains effective and aligned with contemporary human rights standards.

37. OPG supports key reforms, including modernising the definition of disability, and introducing a positive duty on service and accommodation providers to take reasonable and proportionate measures to eliminate discrimination. These changes would provide clearer legal protections and improve the ability of community visitors to advocate for adults and children’s rights. However, OPG emphasises that adequate government funding, clear guidance, and practical resources will be critical to supporting providers in meeting their obligations, particularly in rural and remote areas.

38. OPG also supports strengthening the duty to make reasonable adjustments and addressing exclusionary discipline practices that disproportionately affect children with disability, particularly those in the child protection system. These measures are necessary to ensure equitable access to services and supports and to reduce the risk of exclusion or disadvantage. OPG remains committed to promoting and protecting the rights and interests of people with impaired capacity and children with disability and welcomes further opportunities to contribute to this important review.

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